HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donald Bower
Applicant
-and-
Toronto Community Housing Corp., Pat Milana, Paulette Duplessie, Maurice Brenner and Steve Flores
Respondents
-and-
Toronto Civic Employees’ Union, Local 416
Intervenor
INTERIM DECISION
Adjudicator: Sheri Price
Indexed as: Bower v. Toronto Community Housing Corp.
1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. In particular, the Application alleges that the respondents harassed and discriminated against the applicant because of disability, including by accusing him of having a mental emotional disorder, denying him a voice recorder to assist him in his duties, denying him help to shovel snow, forcing him to work with an injured hand, and suspending him for not fulfilling employment duties.
2This Interim Decision addresses an outstanding Request to Intervene filed by the applicant’s trade union, the Toronto Civic Employees’ Union, Local 416 (“TCEU” or “the union”). It also directs that a teleconference hearing be convened to hear the parties’ submissions with respect to whether the Tribunal ought to grant the applicant’s Request to reactivate the Application following the completion of a labour arbitration proceeding to which the Tribunal deferred; and if so, whether the Application ought to be dismissed pursuant to s.45.1 of the Code.
request to intervene
3As noted above, this Application alleges that the respondents discriminated against the applicant with respect to employment because of disability. During the relevant timeframe, the applicant was employed by the corporate respondent. He was represented in that employment by a trade union, TCEU, which filed a Request to Intervene in the Application on May 6, 2009.
4The applicant objects to TCEU’s Request to Intervene in the Application. The applicant submits that the union did not pursue his human rights issues in grievance procedure meetings with the corporate respondent, nor investigate the applicant’s human rights issues. As a result, the applicant submits that the union has “no status” in this Application.
5It appears that the respondents did not respond to the Request to Intervene.
6The Tribunal has found on numerous occasions that a trade union nearly always has an interest in an application brought by a member of one of its bargaining units and that, absent exceptional circumstances, will be granted intervention status when it requests it. See Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, at para. 13, and cases citing that decision.
7Having considered the parties’ submissions, I see no reason in this case to depart from the Tribunal’s established practice regarding the granting of intervenor status when the applicant is represented by a trade union.
8The applicant objects to the union being granted intervenor status on the stated basis that the union did not pursue the applicant’s human rights issues outside of the Tribunal process. Even if that were true, however, in my view, it would not be a relevant consideration in determining whether the union ought to be permitted to intervene in the Application. Rather, the relevant consideration is whether the union has a sufficient interest in the Application, such that it ought to be permitted to intervene in the proceeding before the Tribunal. As the applicant’s exclusive bargaining agent with respect to the terms and conditions of his employment by the corporate respondent, I am satisfied that TCEU’s interest in the Application is such that it ought to be permitted to intervene in this matter.
9TCEU’s Request to Intervene in the Application is granted. The extent and nature of the union’s participation in the hearing will be determined by the adjudicator assigned to hear the Application.
request to reactivate and request to dismiss
10On August 13, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 1258, deferring consideration of the Application, pending the outcome of a grievance arbitration proceeding in respect of two grievances filed on the applicant’s behalf by his union, TCEU, against the respondent employer.
11By letter dated December 28, 2012, the Tribunal directed the applicant to provide an update on the status of his grievances and to indicate whether the grievance process was still ongoing. The Tribunal advised the applicant that failure to respond to the Tribunal within 30 days of the date of the letter could result in his Application being dismissed as abandoned. In addition, the Tribunal’s letter specifically drew the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which outline the procedure by which a deferred application might be brought back on after the conclusion of another proceeding.
12The applicant did not respond to the Tribunal’s December 28, 2012 letter. However, by letter dated January 24, 2013, the union advised the Tribunal and the other parties that the grievance arbitration proceeding in respect of the applicant’s grievances had been completed on December 17, 2012, with the issuance of an award by the labour arbitrator who heard the applicant’s grievances.
13It was not until June 27, 2013 that the applicant, through his legal representative, wrote to the Tribunal asking that it reactivate the Application. (I note that although the applicant’s representative’s letter is dated May 6, 2013, it was not sent to the Tribunal on that date, nor does it appear to have been written on that date given that it refers to events that occurred in late May 2013.) After being directed to do so by the Tribunal, the applicant submitted his reactivation request using a Form 10 (“Request for an Ordering during Proceedings”), in keeping with the procedure set out in Rules 14.3 and 14.4.
14On July 29, 2013, the respondents filed a Request for an Order during Proceedings, opposing the applicant’s request to reactivate the Application on the basis of delay. As I understand it, the respondents submit that the applicant’s reactivation request ought to be denied because it was not made within 60 days of the completion of the other proceeding to which the Tribunal had deferred (i.e. within 60 days of the issuance of the arbitration award in respect of the applicant’s grievances on December 17, 2012).
15In their July 29, 2013 Request, the respondents also request that the Application be dismissed pursuant to s.45.1 of the Code, which states:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
16TCEU concurs with the respondents that the labour arbitration proceeding in respect of the applicant’s grievances appropriately dealt with the substance of the Application and that the Application should therefore be dismissed. The applicant opposes the respondent’s Request to Dismiss.
17Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties the opportunity to make oral submissions.
18Accordingly, in all of the circumstances, I find that the most fair, just and expeditious manner in which to proceed is to convene a teleconference hearing in this matter in order to give the parties an opportunity to make oral submissions on the following issues:
whether the applicant’s request to reactivate the Application ought to be granted; and
if so, whether the Application ought to be dismissed pursuant to s.45.1 of the Code on the basis that the grievance arbitration proceeding appropriately dealt with the substance of the Application.
19With respect to the first issue, at the teleconference hearing, the parties ought to be prepared to make submissions with respect to whether the applicant’s reactivation request ought to be denied because it was not made within 60 days of the completion of the other proceeding to which the Tribunal deferred, as required by Rule 14.4, or whether this is an appropriate case for the Tribunal to extend the time limit for filing a reactivation request pursuant to Rule 1.1, 1.7(a), 5.1 and/or 5.2 of the Tribunal’s Rules of Procedure.
ORDERS
20TCEU’s Request to Intervene in the Application is granted. The extent and nature of TCEU’s participation in the hearing will be determined by the adjudicator assigned to hear the Application.
21The Registrar will schedule a half-day hearing by teleconference to address the applicant’s Request to reactivate the Application and the respondents’ Request that the Application be dismissed pursuant to s. 45.1 of the Code.
22Any party wishing to rely on caselaw or written materials not already filed with the Tribunal, or any facts not contained in the materials already provided, must deliver such documents or information to the other parties and file them with the Registrar no more than 14 days prior to the teleconference hearing.
23The Tribunal’s Rules of Procedure are available online at www.hrto.ca under the “Law, Rules and Policy” tab.
Dated at Toronto, this 27^th^ day of September, 2013.
“signed by”
Sheri Price
Vice-chair